Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 551

Unopposed Motion for leave to File a Reply in regards to 518 MOTION Participate in Trial Proceedings filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez-Rodriguez, Keyanna Wigglesworth. (Attachments: # 1 Exhibit)(Culleen, Lawrence) Modified on 9/25/2018 (McDonagh, Christina).

UNITED STATES DISTRICT COURT FOR
THE DISTRICT COURT OF MASSACHUSETTS
BOSTON DIVISION

STUDENTS FOR FAIR ADMISSIONS, INC,
Plaintiff,
v.

Civil Action No. 1:14-cv-14176-ADB

PRESIDENT AND FELLOWS OF
HARVARD COLLEGE (HARVARD
CORPORATION),
Defendant.

REPLY OF STUDENT AMICI CURIAE REGARDING ITS
MOTION TO PARTICIPATE IN TRIAL
In opposing Students’ motion to participate in trial, SFFA does not dispute the critical
importance of this case, nor does it dispute that Students offer a unique perspective that would
not otherwise be represented. SFFA does not deny that this Court has ample authority to permit
the testimony of students of color at trial. Instead, SFFA willfully ignores this Court’s prior
Order inviting Students to request permission to participate in trial, mischaracterizes Harvard’s
concern for student privacy as a lack of interest in calling students, and trivializes Students’
perspectives, which are crucial to ensure a full and fair airing of the relevant factual and legal
issues.
Contrary to SFFA’s assertions, Harvard does not raise concerns about judicial expediency
with regard to Students’ proposal of offering eight witnesses along with opening and closing
arguments. Harvard agrees that Students’ participation as witnesses would aid this court.

Harvard expresses only one such disagreement: it opposes Students’ request to cross-examine
Dr. Arcidiacono because it risks being duplicative. But Students intend to probe distinct and
important issues regarding Dr. Arcidiacono’s analysis, namely whether Harvard’s “ALDC”
preferences explain any negative effect observed in Asian American admission rates. This issue
has not been raised by either party in their briefs, is not likely to be raised at trial, and cannot be
scrutinized through written submissions alone.
The question for the Court is whether—in this case of national importance that will have
a profound impact on diversity at campuses across the country for the foreseeable future—it
would further the interests of justice to actually hear the testimony of those students in the
courtroom. Students believe that the answer to that question is undoubtedly “yes.” Students
therefore respectfully request the opportunity to participate in trial in the limited manner set forth
in their motion.
A. Students’ limited participation at trial is squarely within this Court’s discretion
and Students’ proffered testimony would meaningfully assist the Court
When this Court denied intervention in 2015, this Court expressly invited Students to file
a motion to participate in trial proceedings. (Dkt. 52 at 23.) SFFA glosses over this invitation
entirely, instead trying to recast this Court’s prior Order as predetermining Students’ exclusion
from trial.

But SFFA’s premature conclusion is unwarranted.

This Court recognized the

importance of revisiting the issue of Students’ participation at this juncture. While SFFA claims
that “[n]othing has changed since that ruling [in 2015] that would warrant the Students’
participation at trial,” (Dkt. 543 at 1), SFFA is plainly mistaken. Numerous developments since
2015 make Students’ participation desirable and compelling.
arguments against Students’ participation—none is availing.

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SFFA levies three primary

First, SFFA argues that “[p]ermitting amici to participate in trial” is “rare relief.” (Dkt.
543 at 2, 4.) However, SFFA fails to acknowledge that this Court has “wide latitude to regulate
the conduct of trial.” Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 442 (1st Cir.
1991). The Federal Rules of Civil Procedure do not contain provisions governing the restrictions
that should be put on amicus appearances. Animal Protection Inst. v. Martin, No. CV-06-128
BW, 2007 WL 647567, *1 (D. Me. Feb. 23, 2007). Therefore, this Court has discretion to decide
the extent of Students’ participation in the trial. State v. Dir., U.S. Fish & Wildlife Svc., 262 F.3d
13, 14 (1st Cir. 2001) (granting amici-plus a “limited right to call and cross-examine witnesses”);
United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 991-92 (2d Cir. 1984)
(discussing the “amici-plus” status offered to parties by the district court, including the ability
“to call their own witnesses and cross-examine [opposing] witnesses”); see also Hoptowit v. Ray,
682 F.2d 1237, 1260 (9th Cir. 1982) (allowing amici to “participate fully in the discovery, trial,
and appeal” of the case), overruled on other grounds in Sandin v. Connor, 515 U.S. 472 (1995).
Second, SFFA mischaracterizes Harvard’s position when it claims Harvard “decided it
was unnecessary to call any students.” (Dkt. 543 at 3.) Not so. Harvard agrees that Students’
witnesses “can offer important and distinctive perspectives on the importance of a racially
diverse student body” and that such testimony “would be of use to the Court.” (Dkt. 541 at 2.)
Far from finding Students’ testimony to be “unnecessary,” Harvard supports Students’
participation and merely declined to call students to respect their privacy. (Dkt. 541 at 2.) Of
note, SFFA references this Court’s prior observation that Harvard could “offer the testimony of
the proposed intervenors.” (Dkt. 543 at 3-4 (citing to Dkt. 52 at 17).) Indeed, that is precisely
the situation here: Harvard welcomes the Students’ participation.

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SFFA’s contention that

Students “quibble with Harvard’s strategic choices” likewise falls apart. In fact, Students are
aligned with Harvard in proffering live student testimony at trial.
Moreover, it is now clear—unlike in 2015—that Students’ participation at trial is
essential for providing first-hand testimony that supports Harvard’s stated interest in raceconscious admissions. To justify its consideration of race, Harvard has expressed its belief that
such diversity enhances students’ experiences during and after college. But absent Students’
participation, there will be no witnesses offering first-hand testimony of such benefits, or the
harms that flow from a reduction in racial diversity. Rather, Harvard’s trial testimony will be
limited to administrators, staff, and its statistical expert. (See Dkt. 541 at 2; Dkt. 546, Ex. 1 at 2.)
As Harvard recognizes, (id.), Students’ participation is necessary to develop a full record on
several issues central to this case including: (i) that ethno-racial identity is an integral and
inextricable aspect of fully appreciating an applicant’s prior achievements, future potential, and
perspective, (see Dkt. 435 at 41; Dkt. 419, Ex. 45 at 6); (ii) that racial diversity exposes students
to “new ideas, new ways of understanding, and new ways of knowing” and “prepares [Harvard
students] to assume leadership roles in the increasingly pluralistic society,” (Dkt. 419, Ex. 45 at
8, 23); (iii) that a reduction in African-American and Hispanic students risks exacerbating
“ongoing feelings of isolation and alienation among racial minorities in [its] community” and
also risks decreasing application rates among underrepresented ethno-racial minority students,
(Dkt. 419, Ex. 47 at 9; Dkt. 419, Ex. 33 at 101); and (iv) that the benefits flowing from racial
diversity are distinct from those flowing from socioeconomic diversity. (Dkt. 419, Ex. 33 at
102-104, 107-115.) None of the parties’ proposed witnesses can offer first-hand testimony on
these points. But Students can and, thus, their participation will result in a more comprehensive
trial record in a case of utmost significance.

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Third, SFFA attempts to preclude Students’ participation by invoking this Court’s prior
concerns with “expediency and judicial economy” when denying intervention. (Dkt. 543 at 5.)
But the concerns expressed by this Court in 2015 no longer apply as, once again, SFFA ignores
the substantial developments since this Court’s prior Order.

At this juncture, Students’

participation does not risk miring the Court in discovery disputes or slowing the discovery
process. (Cf. Dkt. 52 at 20-21.) Nor does Students’ participation risk delaying the ultimate
resolution, merely extending the trial by a matter of hours. Indeed, SFFA’s complaints about the
number of Students’ proffered witnesses ignores the fact that such testimony is limited in time
(approximately 45 minutes each), involves no expert testimony, and is critical to the issues at the
heart of this case. Of over 20 witnesses that have been identified by the parties,1 Students have
only proposed cross-examining one. Altogether, any additional costs are minimal at best, and
greatly outweighed by the supreme significance of this case. Students’ participation will help
ensure “a complete and plenary presentation of difficult issues so that the court may reach a
proper decision.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll.,
308 F.R.D. 39, 52 (D. Mass 2015); see also Daggett v. Comm’n on Governmental Ethics &
Election Practices, 172 F.3d 104, 115 (1st Cir. 1999) (Lynch, J. concurring) (“[C]oncerns that
the case be decided on the basis of a fully developed factual record and briefing, or at least as full
as the circumstances permit, may carry similar weight [as concerns about judicial efficiency]”).
Notably, SFFA does not argue that it would be prejudiced by Students’ participation in
trial. Indeed, no such argument would be possible. Since this Court’s intervention order in
1

Harvard’s “List of Witnesses to be Called Live or By Deposition,” by itself, includes at least
twenty individuals and several more redacted names. (Dkt. 546-1 at 2.) SFFA has not provided
Students with their witness list, nor filed it in the public record, but presumably it will also
include their expert Dr. Arcidiacono. Clearly, the number of individuals identified between the
parties exceeds 20.

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2015, SFFA has been on notice that Students might participate in any eventual trial. Moreover,
the identities of the individual Student witnesses have long been known, and each of the intended
Student witnesses has filed detailed declarations, outlining the factual bases for their testimony.
Indeed, SFFA admitted as much by stating in a prior filing that Students “are differently situated
than [other amici]” because Students “moved to intervene over three years ago . . . and gave
SFFA the option of seeking discovery . . . .” (Dkt. 479 at 4-5.) In light of this procedural history,
no claim of prejudice or undue surprise would be possible.
B. Students’ cross-examination of Dr. Arcidiacono would probe distinct and
important issues which neither party would raise
Harvard only objects to Students’ proposal to cross-examine Dr. Arcidiacono. (Dkt. 541
at 3.) Harvard presumes that Students’ examination “would likely be duplicative” of Harvard’s.
(Id.)

But Students’ interests diverge from both parties with regard to SFFA’s intentional

discrimination claim, and their cross-examination would likewise solicit important testimony
which otherwise may not surface in trial. Namely, Students have an interest in probing whether
Harvard’s preferences for “ALDC” applicants—recruited athletes, legacy applicants, those on
the Dean’s/Director’s lists, and children of Harvard faculty/staff—substantially impact Asian
Americans’ overall admission rate vis a vis white students’. As Students highlighted in their
August brief, Dr. Arcidiacono’s own data suggest that any disadvantage faced by Asian
Americans is most attributable to “ALDC” preferences, not race-conscious admissions. (Dkt.
509 at 29-30.)2 Neither party meaningfully engages with this inquiry, despite its relevance to
SFFA’s discrimination claim and any possible remedy.
2

SFFA’s expert Dr. Arcidiacono

Harvard argues that Students’ limited participation in expert discovery should preclude
Students’ from cross-examination. (Dkt. 541 at 3-4.) But this argument is unpersuasive since
Students’ had sufficient access to Dr. Arcidiacono’s expert reports to raise substantial doubt
about the conclusions SFFA draws by honing in on preferences based on race as opposed to
other preferences afforded in the admissions process and their impact on Asian Americans.

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deliberately excludes the consideration of “ALDC” applicants when analyzing whether a
disparate effect exists for Asian American admission rates. (Dkt. 419, Ex. 31 at 25-26). By
removing such applicants, Dr. Arcidiacono does not consider whether any observed differential
in admissions may be attributable to these other preferences, not race-conscious admissions.
Students propose interrogating Dr. Arcidiacono on the limitations of his analysis and its
indication that “ALDC” preferences may better explain differences in admission rates for Asian
Americans.
Contrary to Harvard’s contention, Students’ cross-examination does not risk being
duplicative given that neither Harvard, nor its expert has ever acknowledged that “ALDC”
preferences may disadvantage Asian Americans in the overall admissions process. Rather,
Harvard’s position has been that any differences in admission rates between Asian Americans
and whites is solely attributable to Asian Americans having “weaker” characteristics, ignoring
the impact of “ALDC” preferences. (See, e.g., Dkt. 484 at 13.) Harvard’s silence on this issue
risks overlooking an alternative explanation for any observed bias against Asian Americans. By
questioning Dr. Arcidiacono on this issue, Students’ cross-examination could smoke out the true
source of any bias against Asian Americans, if it does exist. By extension, such questioning
would ensure a more robust defense of race-conscious admissions and, if any violation were
found, a more appropriate remedy.
Because Students intend to present distinct arguments, Students’ participation at trial will
not lead to duplicative examinations and will meaningfully develop the factual record on key
issues. See Daggett v. Webster, 190 F.R.D. 12, 13-14 (D. Me. 1999); see also Capacchione v.
Charlotte-Mecklenburg Bd. of Educ., 179 F.R.D. 505, 509-10 (W.D.N.C. 1998) (allowing the
presentation of evidence with “common issues of fact and law” as the claims before the court

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will help the court to understand the issues before it). Wherefore, Students respectfully request
that the Court grant them leave to make opening and closing statements, present student
declarant testimony, and cross-examine SFFA’s expert witness Dr. Arcidiacono.
Respectfully Submitted,
/s/ Oren M. Sellstrom
Oren M. Sellstrom (BBO #569045)
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
AND ECONOMIC JUSTICE
61 Batterymarch Street, Fifth Floor
Boston, MA 02110
Tel: [phone]
[e-mail]
/s/ Genevieve Bonadies Torres
Genevieve Bonadies Torres (pro hac vice)
Kristen Clarke
Jon M. Greenbaum (pro hac vice)
Brenda Shum (pro hac vice)
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS
UNDER LAW
1500 K Street, NW
Washington, DC 20005
Tel: [phone]
[e-mail]
/s/ Nicole K. Ochi
Nicole K. Ochi (pro hac vice)
ASIAN AMERICANS ADVANCING JUSTICE
1145 Wilshire Boulevards
Los Angeles, CA 90017
Tel: [phone]
[e-mail]
/s/ Lawrence Culleen
Lawrence Culleen (pro hac vice)
Nancy Perkins (pro hac vice)
Steven Mayer (pro hac vice)
Emma Dinan (pro hac vice)
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
Tel: [phone]

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[e-mail]
Dated: September 21, 2018

COUNSEL FOR AMICI CURIAE

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CERTIFICATE OF SERVICE
In accordance with Local Rule 5.2(b), I hereby certify that this document filed through
the ECF system on September 21, 2018 will be sent electronically to the registered participants
as identified on the Notice of Electronic Filing.
/s/ Lawrence Culleen
Lawrence Culleen

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